Jones v. Jones , 138 Ga. 730 ( 1912 )

Atkinson, J.

1. The facts of this case in substance are similar to those involved in the case of Wilder v. Wilder, 138 Ga. 573 (75 S. E. 654). In that case the property involved was bought with money belonging to the defendant, her sister, and her son, under a parol agreement that the title should be made to the son, and that the property should be held for the defendant, subject to the right of the sister and son to live in the house as long as the defendant occupied it as a home; and it was held that the effort was to create an express trust by parol, which, under our statute, can not be done. That ruling when applied to the facts of the present case is controlling. Accordingly, the court erred in refusing, on motion, to strike so much of the answer of the defendants as sought to set up the parol contract in reference to the land. Counsel for defendant in error strongly rely upon the ruling in the case of Holmes v. Holmes, 106 Ga. 858 (33 S. E. 216). That case, however, is distinguishable from the case of Wilder v. Wilder, supra, and the present, in that the ruling there made was based upon the holding that the grantee in the deed to the property in which the trust was sought to be set up paid no part of the purchase-money for the property. The opinion laid stress upon the point that the grantee named in the deed paid no part of the purchase-money, and thereby indirectly recognized the principle ruled in the case of Wilder v. Wilder.

2. The ruling above announced does not apply to the personal property involved in tbe suit. According to the allegations of the plea, the personal property was paid for with funds common to all the family and title to it was not placed exclusively in the plaintiff and the original defendant, as was done in regard to the land. Under such circumstances it was competent for the defendants to set up and, upon proof, enforce the alleged parol agreement relatively to the personal property.

3. The plaintiffs mother and father, by the terms of the plea, were alleged to have such an interest in the personal property as to render them proper parties to the suit.

Judgment reversed.

All the Justices concur.